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Judgment
Rakesh Kainthla, Judge
The present appeal is directed against the judgment and decree dated 12.06.2007 passed by the learned District Judge, Kinnaur Civil Division at Rampur (learned Appellate Court) vide which the judgment and decree dated 23.08.2006 passed by the learned Civil Judge (Senior Division) Kinnaur District at Rekong Peo (HP) (learned Trial Court) were upheld.
(The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).
Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit before the learned Trial Court for possession of the suit land mentioned in para 1 of the plaint. It was asserted that the plaintiff is recorded to be the owner in possession of the suit land. The suit land was allotted to the plaintiff in the partition proceeding by learned Assistant Collector First Grade in the year 1989. The plaintiff is in exclusive possession of the suit land. The defendant filed a civil suit for declaration before the Court for declaring himself to be the owner in possession of the whole of the land by challenging the order of partition. This suit was partly decreed. Two separate appeals were preferred. The appeal preferred by the present defendant was dismissed while the appeal preferred by the present plaintiff was allowed. The present defendant preferred a regular second appeal before this Court, which was dismissed. The Court restrained the defendants in Civil Suit No. 13/1 of 2004; however, this order was vacated by the Court on 06.04.2004. The defendant forcibly dispossessed the plaintiff on 09.04.2004. This order was passed based on an application filed by the plaintiff before the learned A.C. First Grade, which was wrongly drafted by an incompetent and unauthorised person. The defendant had no right to interfere with the plaintiff's possession or to dispossess him. Therefore, the suit was filed for seeking the relief mentioned above.
The suit was opposed by filing a written statement taking preliminary objections regarding lack of maintainability and jurisdiction, the plaintiff being estopped from filing the suit by his act, conduct and acquiescence, the suit being barred by limitation and the plaintiff having concealed the material facts from the Court. The contents of the plaint were denied on merits. It was asserted that the defendant has been in possession of the suit land openly and continuously after the partition and has become the owner by way of adverse possession. The ex-parte order of injunction was vacated because the Court did not find the present plaintiff to be in possession. The partition order and instrument of partition remained in papers. Plaintiff did not seek the delivery of possession under Section 134 of the HP Land Revenue Act. The defendant remained in possession, and he has become the owner by adverse possession. It was wrongfully asserted that the application was drafted by some document writer; rather, the same was drafted by an Advocate as per the plaintiff's instructions. Hence, it was prayed that the suit be dismissed.
A replication denying the contents of the written statement and affirming those of the plaint was filed.
The following issues were framed by the learned Trial Court on 23.05.2005:
1.Whether the plaintiff is entitled to the possession of the suit land, as alleged? OPP
2.Whether the suit is not maintainable in the present form, as alleged? OPD
3.Whether this Court has no jurisdiction to try the suit, as alleged? OPD
4.Whether the plaintiff is estopped from filing the present suit by his act and conduct? OPD
5.Whether the suit is barred by limitation? OPD
6.Whether the defendant has become owner of the suit land by way of adverse possession as alleged? OPD
7.Relief.
The parties were called upon to produce the evidence and the plaintiff examined himself (PW1), Bhag Chand (PW2) and Chandermani (PW3). The defendant examined himself (DW1), Jai Singh (DW2), Kehar Singh (DW3) and Niju Ram (DW4).
Learned Trial Court held that the plaintiff was dispossessed after the vacation of the stay order. It was held in the previous proceedings that the parties were put in possession of the land allotted to them during the partition. The defendant had failed to prove his plea of adverse possession. Hence, learned Trial Court answered issue No. 1 in the affirmative, the rest of the issues in the negative and decreed the suit.
Being aggrieved by the judgment and decree passed by learned Trial Court, the defendant filed an appeal which was decided by learned District Judge, Kinnaur (learned Appellate Court). Learned Appellate Court concurred with the findings recorded by learned Trial Court that the suit land was earlier jointly owned by the parties and was partitioned by the revenue authorities. The parties were put in possession of their share after the partition. The High Court had also held so in the previous proceedings. Any evidence to the contrary led in the present proceedings could not be looked into to get rid of the findings recorded by the High Court. There was no infirmity in the judgment and decree passed by learned Trial Court. Hence the appeal was dismissed.
Being aggrieved by the judgment and decree passed by learned Courts below, the defendant has filed the present appeal which was admitted on the following substantial questions of law on 09.05.2008:
1.Whether both the Courts below have recorded arbitrary, illegal, erroneous and perverse findings in holding the suit of the plaintiff to be within the period of limitation, especially by ignoring the order of Assistant Collector First Grade, rejecting the application of the plaintiff for delivery of possession in pursuance to the instrument of partition?
2.Whether the plaintiff failed to establish on record the actual date of delivery of possession pursuant to the partition proceedings, have not both the Courts below acted arbitrarily by holding the suit to be maintainable on the claim of alleged dispossession?
I have heard Mr Bhupender Gupta, learned Senior Counsel, assisted by Mr Harshit Sharma, learned counsel for the appellants and Mr Mohinder Verma, learned counsel for the respondents.
Mr Bhupender Gupta, learned Senior Counsel for the appellants, submitted that the learned Courts below erred in relying upon the findings recorded by this Court in RSA No. 81 of 2002. The substantial questions of law framed by this Court in the previous RSA did not relate to the delivery of possession, and the observations made in passing were misread by the learned Courts below. The defendant filed an application (Ex.D1) for the delivery of possession of the suit land, which application was dismissed. The learned Courts below erred in holding that the possession was delivered to the landowners after the partition. The learned Courts below failed to appreciate the significance of the application and the admission made by the plaintiff in his cross-examination. The plaintiff made false averments in the plaint that he was dispossessed after the vacation of the ex parte order of injunction by the Court. In fact, he was never put in possession of the suit land. The jurisdiction of the Civil Court to deliver possession of the land partitioned by the revenue authorities is barred, and the jurisdiction lies only with the Revenue authorities to deliver possession. The present suit is an attempt to take the possession without approaching the Revenue authorities, which is impermissible. Therefore, he prayed that the present appeal be allowed and the judgments and decrees passed by the learned Courts below be set aside. He relied upon the judgment of this Court in Mast Ram Vs. Shankar Dass 2014 (90) Suppl. HLR 2333 in support of his submission.
Mr Mohinder Verma, learned counsel for the respondents, submitted that the learned Courts below have rightly held that the matter is concluded by the previous judgment passed by this Court in RSA No. 81 of 2002. This Court had categorically held in RSA No. 81 of 2002 that the possession was delivered to the parties after the partition and it is impermissible for the subsequent Court to say that possession was not so delivered. The application was filed by the plaintiff on mistaken advice and should not be held against him. The learned Courts below have concurrently held that the plaintiff was in possession and he was dispossessed. These are pure findings of fact and should not be disturbed in the Regular Second Appeal. Hence, he prayed that the present appeal be dismissed. He relied upon the following judgments in support of his submissions: -
(i)C. Dodanarayana Reddy (dead) through LRs and others Vs. C. Jayarama Reddy (dead) through LRs and others (2020) 4 SCC 659;
(ii)Champa Devi Vs. Sudama Dubey (dead) and others (2018) 12 SCC 710;
(iii)Narendra & ors. Vs. Ajabarao (dead) through LRs (2018) 11 SCC 564;
(iv)Tapas Kumar Samanta Vs. Sarbani Sen & anr. (2015) 12 SCC 523;
(v)Randhir Kaur Vs. Prithvi Pal Singh & ors. (2019) 17 SCC 71;
(vi)State of Madhya Pradesh & anr. Vs. Dungaji through LRs & ors. (2019) 7 SCC 465; and
(vii)Vijay Pullarwar & ors. Vs. Shri Hanuman Deostan (2019) 11 SCC 718.
I have given considerable thought to the submissions made at the bar and have gone through the records carefully.
Substantial Questions of Law No.1 and 2:
These substantial questions of law are intricately connected and are being taken up together for convenience.
It is undisputed that this Court had decided the Regular Second Appeal No. 81 of 2002 between the same parties on 23.12.2002. This Court had specifically held, while deciding Substantial Question of Law No.1, that the plaintiff has not set up the case in his pleadings that consequent upon the order of partition, the parties were never placed into possession of their respective lands.” It was also held while deciding Substantial Question of Law No. 4 that “in the absence of pleadings and evidence, that actual possession of such partition land was never delivered to the parties, the learned First Appellate Court had rightly held that plaintiff and defendant No.1 were the owners and in possession of the respective areas, falling to their shares and in declining the relief of injunction in favour of the plaintiff.”
Therefore, the learned Trial Court had rightly held that the matter was concluded by the findings recorded by this Court between the same parties, and it is impermissible to agitate the question of delivery of possession in the present proceedings. It was laid down by the Hon’ble Supreme Court in Sharada Sanghi v. Asha Agarwal, 2026 SCC OnLine SC 480 that when a question has been determined between the parties in one manner, it is not permissible to litigate it again or decide it in any other way in the subsequent proceedings. It was observed:
47.Quite apart, it would also not be unfair to criticise the conduct of the appellants as amounting to an abuse of the process of the court. Having allowed their earlier challenge to the sale deeds to attain finality, they cannot now seek to reopen the same issue in execution. Such attempt is impermissible. The process of the court cannot be used to revive what has already been consciously abandoned. This position stands squarely covered by the decision of this Court in K.K. Modi v. K.N. Modi (1998) 3 SCC 573, wherein it was authoritatively held that re-litigation of an issue already raised, or capable of being raised, constitutes an abuse of process, even if the strict requirements of res judicata are not satisfied. This Court held thus:
43.The Supreme Court Practice 1995 published by Sweet & Maxwell in paragraphs 18/19/33 (p. 344) explains the phrase “abuse of the process of the court” thus:
“This term connotes that the process of the court must be used bona fide and properly and must not be abused. The court will prevent improper use of its machinery and will, in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation. … The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances. And for this purpose considerations of public policy and the interests of justice may be very material.”
44.One of the examples cited as an abuse of the process of the court is relitigation. It is an abuse of the process of the court and contrary to justice and public policy for a party to relitigate the same issue which has already been tried and decided earlier against him. The re-agitation may or may not be barred as res judicata. But if the same issue is sought to be re-litigated, it also amounts to an abuse of the process of the court. A proceeding being filed for a collateral purpose, or a spurious claim being made in litigation, may also in a given set of facts amount to an abuse of the process of the court. Frivolous or vexatious proceedings may also amount to an abuse of the process of the court, especially where the proceedings are absolutely groundless. The court then has the power to stop such proceedings summarily and prevent the time of the public and the court from being wasted. Undoubtedly, it is a matter of the court's discretion whether such proceedings should be stopped or not; and this discretion has to be exercised with circumspection. It is a jurisdiction which should be sparingly exercised, and exercised only in special cases. The court should also be satisfied that there is no chance of the suit succeeding.
45.In the case of Greenhalgh v. Mallard [(1947) 2 All ER 255] the Court had to consider different proceedings on the same cause of action for conspiracy, but supported by different averments. The Court held that if the plaintiff has chosen to put his case in one way, he cannot thereafter bring the same transaction before the Court, put his case in another way and say that he is relying on a new cause of action. In such circumstances he can be met with the plea of res judicata or the statement or plaint may be struck out on the ground that the action is frivolous and vexatious and an abuse of the process of the court.
46.In Mcllkenny v. Chief Constable of West Midlands Police Force [(1980) 2 All ER 227] the Court of Appeal in England struck out the pleading on the ground that the action was an abuse of the process of the court since it raised an issue identical to that which had been finally determined at the plaintiffs' earlier criminal trial. The Court said even when it is not possible to strike out the plaint on the ground of issue estoppel, the action can be struck out as an abuse of the process of the court because it is an abuse for a party to relitigate a question or issue which has already been decided against him even though the other party cannot satisfy the strict rule of res judicata or the requirement of issue estoppel. (emphasis ours)
This position was reiterated in Nagaraj V. Mylandla v. PI Opportunities Fund-I, 2026 SCC OnLine SC 1218 wherein it was observed:
ISSUE ESTOPPEL
58.It would be appropriate to consider the concept of ‘issue estoppel’ first before turning to the doctrine of ‘transnational issue estoppel’. In Gopal Prasad Sinha v. State of Bihar (1970) 2 SCC 905: 1970 SCC (Cri) 584, this Court considered as to what would constitute ‘issue estoppel’ and opined to the effect that the basic principle underlying the ‘rule of issue estoppel’ is that, the same issue of fact and law must have been determined in the previous litigation and if there is any likelihood of facts or conditions changing during the two periods which are under consideration, then it would be difficult to say that the finding in the previous proceeding on a similar issue of fact would be binding during the later proceeding. Thereafter, in Hope Plantations Ltd. v. Taluk Land Board, Perinade (1999) 5 SCC 590, a 3-Judge Bench of this Court observed that it is settled law that the principles of estoppel and res judicata are based on public policy and justice, though these two doctrines differ in some essential particulars. It was noted that the rule of res judicata prevents the parties to a judicial determination from litigating the same question over again, even though the determination may be demonstrably wrong, as the parties would be bound by the judgment once it attains finality and they would be estopped from questioning it. It was further observed that the parties cannot litigate again on the same cause of action nor can they litigate any issue which was necessary for decision in the earlier litigation and these two aspects are - ‘cause of action estoppel’ and ‘issue estoppel’. Noting that these two phrases are of common law origin, the Bench stated that, once an issue has been finally determined, parties cannot subsequently in the same suit advance arguments or adduce further evidence directed to showing that the issue was wrongly determined. It was held that the determination of the issue between the parties gives rise to an ‘issue estoppel’ which would operate in subsequent proceedings in the same suit in which the issue has been determined. It was further held that it would operate even in subsequent suits between the same parties, in which the same issue arises. In Bhanu Kumar Jain v. Archana Kumar (2005) 1 SCC 787, this Court pointed out that there is a distinction between ‘issue estoppel’ and ‘res judicata’. Per this Court, res judicata debars a court from exercising its jurisdiction to determine the lis if it has attained finality between the parties, whereas the doctrine of ‘issue estoppel’ is invoked against the party if such an issue has been decided against him; he would be estopped from raising the same in a later proceeding.
59.Reference was made to the decision of the Court of Appeal in Thoday v. Thoday [1964] 1 All ER 341 (CA), wherein it was observed that estoppel per rem judicatam is a generic .term which, in modern law, includes two species - the first species ‘cause of action estoppel’ is that which prevents a party to an action from asserting or denying, as against the other party, the existence of a particular cause of action, the non-existence or existence of which has been determined by a court of competent jurisdiction in a previous litigation between the same parties; and the second species ‘issue estoppel’ is an extension of the same rule of public policy and was explained in the following terms - there are many causes of action which can only be established by proving that two or more different conditions are fulfilled and such causes of action involve as many separate issues between the parties as there are conditions to be fulfilled by the plaintiff in order to establish his cause of action; and there may be cases where the fulfilment of an identical condition is a requirement common to two or more different causes of action. If in a litigation on one such cause of action, any of such separate issues as to whether a particular condition has been fulfilled is determined by a court of competent jurisdiction, neither party can, in a subsequent litigation between them, on any cause of action which depends upon fulfilment of the identical condition, assert that the condition was fulfilled if the court in the first litigation determined that it was not or deny that it was fulfilled if the court in the first litigation determined that it was.
Once this Court had held in contested proceedings that the parties were put in possession of the respective land allotted to them after the partition, it is impermissible for the subsequent Court to say that the parties were not so put in possession. Therefore, any evidence led before the learned Trial Court in the present proceedings to prove that the possession was not so delivered cannot be looked into and learned Courts below had rightly held that the plaintiff’s plea that he was put in possession of the suit land after the partition and was dispossessed by the defendant has to be accepted as correct. The defendant failed to prove the plea of adverse possession taken by him, and learned Courts below had rightly held that the plaintiff was entitled to possession.
It was submitted that this Court had made the observations in passing and they were not necessary for the decision of the case. This submission cannot be accepted. The Court had specifically held, while deciding a substantial question of law, that the finding recorded by learned Courts below that parties were put in position was correct. Therefore, the observations were not in passing, but were necessary for the disposal of the regular second appeal in the previous proceedings. Thus, the findings recorded by this Court cannot be ignored by holding that these were in passing.
A heavy reliance was placed upon the application filed by the defendant under Section 134 of the HP Land Revenue Act to submit that the possession was never delivered to the plaintiff and learned Courts below erred in ignoring the contents of the application. This submission will not help the defendant. Learned Courts below had rightly held that it is impermissible to look into any contrary evidence to get rid of the findings recorded in the previous proceedings. Therefore, no advantage can be derived from the application filed by the plaintiff under Section 134 of the HP Land Revenue Act.
The judgment in Narendra (supra), Champa Devi (supra), C. Dodanarayana Reddy (supra), Vijay Pullarwar (supra), Dungaji (supra), Randhir Kaur (supra) and Tapas Kumar (supra) deal with the powers of the High Court while dealing with the Regular Second Appeal and it is not necessary to refer them in view of the findings recorded above.
Therefore, there is no mis-appreciation or perversity in the findings recorded by learned Courts below and the suit cannot be held to be barred by limitation. Hence, these substantial questions of law are answered accordingly.
Final Order:
In view of the above, the present appeal fails, and the same is dismissed.
The appeal stands disposed of, so also the pending application(s), if any.
Records of the learned Courts below be sent down forthwith.